Navigating the tightrope of fluctuating capacity

In the case of Bury Metropolitan Borough Council v EM, the Court of Protection clarified its role in approving restrictions that amount to a deprivation of liberty.

This is the first of two blogs on the issue of capacity which in some cases is further complicated and difficult when a patient’s capacity fluctuates. Understanding the nature of fluctuating capacity, what triggers it, and the scope of the incapacity when triggered is complex. The difficulties of a such a case are perfectly illustrated here.

Background

The patient, EM, was detained under section 3 of the Mental Health Act 1983 due to dysregulated behaviour and self-harm. Post-discharge she was placed in a supervised and locked environment, where incidents of self-harm significantly declined. Despite this improvement, EM remained subject to these restrictions, and therefore sought a less restrictive environment.

The local authority and prospective care providers were also concerned that the existing deprivation of liberty safeguard (DoLS) arrangement could hinder EM's chances of securing a new placement. They argued that EM's fluctuating capacity to make decisions about her residence and care negated the need for the DoLS to continue.

The Mental Capacity Act 2005 and fluctuating capacity

Under the MCA, capacity is assessed based on the ability to make a specific decision at a particular time. The Act outlines that a person lacks capacity if, at the material time, they are unable to make a decision due to an impairment or disturbance in the functioning of the mind or brain.

A person has capacity if they are able to understand, retain, use or weigh the information relevant to the decision, and be able to communicate their decision. This is difficult in cases where an individual’s capacity fluctuates.

This has practical implications on care planning, and in cases where an individuals’ capacity fluctuates, care plans should be flexible and include provisions for times when a person may lack capacity and when they may not.

The court's decision

The Court of Protection disagreed with the local authority’s argument and approved EM’s DoLS but clarified that if a care plan with lesser restrictions could be devised, then EM’s DoLS would not be mandatory. The court made it clear that it has the power to approve restrictions but does not create them.

This decision highlights the need for tailored care plans that prioritise the individual's best interests and the importance of flexibility in applying DoLS orders. This is particularly significant in cases of fluctuating capacity, where the restrictions on an individual may be subject to change on a regular basis.

Comment

His Honour Judge Burrows clarified that the phrase "on a DoL" or "under a DoL" means that an order or authorisation is in place, allowing carers to impose necessary restrictions in the best interests of the individual. However, this should not be seen as a mandatory imposition akin to a prison sentence but rather as a flexible tool to ensure the individual's safety and wellbeing. This decision is particularly important in cases where fluctuating capacity is a significant issue.

Although judgment had not been given at the time of the EM October 2024 hearing, the difficulties of such a case are neatly set out in Leicester County Council v P and Anor, where Leah Selkirk of Mills & Reeve acted for the Integrated Care Board. Click here to read Leah’s article. 

Our content explained